Striking workmen restrained from staging dharna, demonstration etc. within 500 meters of the site of employer
2018 LLR 535
HIMACHAL PRADESH HIGH COURT
Hon’ble Mr. Sanjay Karol, A.C.J.
Hon’ble Mr. Tarlok Singh Chauhan, J.
C.W.P. No. 8480/2014, Dt/–8-3-2018
Gujarat Steel Tubes Ltd.
vs.
Gujarat Steel Tubes and Others
STRIKE – Right of workmen to resort – Although right to strike is recognized by law but it has to be peaceful – 40 persons who were disengaged have been indulging in illegal and unlawful activities i.e., staging of dharna, gheraoing, etc. – They were persistently and repeatedly gathering and assembling at Camp Site at Chhaila – The location where the different activities of the remaining unexecuted work were being undertaken and were further indulging in slogan shouting, intimidating and threatening the staff and were not even letting the remaining work force numbering about 200 to carry out any activity – The High Court when approached in a writ petition issued direction by restraining the 40 persons to interfere or obstruct the ingress and egress of the workers on roll of respondent No. 3 or its sub-contractors or any other person(s) intending to enter the premises of respondent No. 3 – They were further restrained from holding or staging any demonstration, dharna, shouting slogans, making provocative speeches within 500 meters from the site.
Paras 2, 14 & 15
For Petitioner: Ms. Jyotsna Rewal Dua, Sr. Advocate with Mr. Tijender Singh Advocate.
For Respondent No. 1&2: Mr. Ashok Sharma, Advocate General with Mr. Ranjan Sharma, Mr. Adarsh Kumar Sharma, Ms. Rita Goswami, Mr. NandLal Thakur, Additional A.G.s, with Mr. J.K. Verma & Mr. Svaneel Jaswal, Dy. A.G.
For Respondent No. 3: Mr. N.K. Sood, Sr. Advocate with Mr. Aman Sood, Advocate.
For Respondent No. 4: Ms. Ritu Raj Sharma, Advocate.
For HPRIDC: Mr. Pranay Pratap Singh & Mr. Rakesh Sharma
IMPORTANT POINTS
• Right to strike is not absolute under the industrial jurisprudence and restriction have been placed on it, by virtue of sections 10(3), 10-A(4A), 20, 23 and 24 of the Industrial Disputes Act.
• Although right to strike is recognized by law as long as it is peaceful and the striking workers have to ensure that the work of the management is not hindered due to strike.
• Disengaged workers are directed by the High Court to approach the competent authority for redressal of their grievances instead of taking law in their hands.
• The High Court has directed the strikers from causing any hindrance or smooth working in the industrial establishment and were also restrained for holding any dharna, demonstration within 500 meters from the site of the petitioners.
SANJAY KAROL, A.C.J.—1. In compliance to the directions passed by this Court on 2.2.2018, respondent No. 3 has filed the status report wherein the details of the progress of the work, from time to time, has been set-out. Apart from that, it has also been mentioned that the excavation activities in Package-I has since been nearing completion and on 23.2.2018 hardly about 200 meters of excavation activity spreading in four different locations was to be executed, therefore, the Mechanical/technical staff and also the drivers/operators, supervisors engaged by respondent No. 3 – Company numbering 40 were disengaged by paying all the dues including salaries as also one month advance salary in lieu of notice period alongwith gratuity etc. by remitting the same to their respective bank accounts.
2. However, to the utter surprise of respondent No. 2, these 40 persons ever since the date of their disengagement have indulged in illegal and unlawful activity of Dharna, Gheraoing etc. and are repeatedly and continuously gathering and assembling at Camp Site at Chhaila, the location where the different activities of the balance unexecuted work are being undertaken and are further indulging in slogan shouting, intimidating and threatening the staff and are not even letting the remaining work force numbering about 200 to carry out any activity.
3. These disengaged persons have not even withdrawn from the project camp site at Chhaila and are forcibly occupying the accommodation which had earlier been provided to them and are indulging in illegal activities from that site. On account of this, the work in Package-I has also come to a grinding halt and the project site at Chhaila has been rendered meaningless for carrying out any activity as the aforesaid persons and their associates have even stopped the ingress and outgress of other machinery.
4. It was on account of these averments that this Court vide order dated 7.3.2018 adjourned the matter for 8.3.2018 to enable the learned Advocate General to obtain instructions with regard to these averments.
5. Today, the learned Advocate General has categorically stated that the State as duty bound is ready to provide all assistance to respondent No. 3, so as to ensure that there is no hindrance created by any person(s) in the smooth execution of the work.
6. In the given circumstances, without going into the merits of the progress report as filed alongwith the status report, we would only determine as to whether 40 persons whose services the respondent No. 3 claims to have disengaged have an absolute right to go on strike and can create hindrance in execution of the work.
7. Ordinarily, the Members of Trade Unions and Industrial Workers covered by the provisions of Industrial Disputes Act, 1947, Industrial Employees Standing Orders, 1946, Trade Union Act, 1926 and host of other legislations can resort to strike as one of the modes of recognized form of expression. However, the strikers must obey civilized norms in the battle and not be vulgar or violent hoodlums.
8. This was so held by the Hon’ble Supreme Court in Gujarat Steel Tubes Ltd. and others v. Gujarat Steel Tubes Mazdoor Sabha and others, (1980) 2 SCC 593 and the relevant observations reads thus:- “129. A selective study of the case-law is proper at this place. Before we do this, a few words on the basis of the right to strike and progressive legal thinking led by constitutional guidelines is necessitous. The right to union, the right to strike as part of collective bargaining and, subject to the legality and humanity of the situation, the right of the weaker group, viz., labour, to pressure the stronger party viz., capital, to negotiate and ender justice, are processes recognised by industrial jurisprudence and supported by Social Justice. While society itself, in its basic needs of existence, may not be held to ransom in the name of the right to bargain and strikers must obey civilized norms in the battle and not be vulgar or violent hoodlums, industry, represented by intransigent managements, may well be made to reel into reason by the strike weapon and cannot then sequeal or well and complain of loss of profits or other ill-effects but must negotiate or get a reference made. The broad basis is that workers are weaker although they are the producers and their struggle to better their lot has the sanction of the rule of law. Unions and strikers are no more conspiracies then professions and political parties are, and being for weaker, need succour. Part IV of the Constitution, read with Article 19 sows the need of this burgeoning jurisprudence. The Gandhian quote at the beginning of this judgment sets the tone of economic equity in industry. Of course, adventuriet, extremist, extraneously inspired and puerile strike, absurdly insan persistence and violent or scorched earth policies boomerang and are snathema for the law. Within the parameters to the right to strike is integral to collective bargaining.”
9. That apart, the right to strike is not absolute under the Industrial jurisprudence and restrictions have been placed on it, by virtue of Sections 10(3), 10-A(4-A), 22, 23 and 24 of the Act, as was observed by the Hon’ble Supreme Court in B.R. Singh v. Union of India, 1989 4 SCC 710 in the following terms:-
“15. Counsel for TFAI also strongly contended that since the strike was illegal, the workers are not entitled to any relief. We see no merit in this submission. The right to form associations or unions is a fundamental right under Article 19(l) (c) of the Constitution. Section 8 of the Trade Unions Act provides for registration of a trade union if all the requirements of the said enactment are fulfilled. The right to form associations and unions and provide for their registration was recognized obviously for conferring certain rights on trade unions. The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade unionists act as mouthpieces of labour. The strength of a trade union depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively with the managements. This bargaining power would be considerably reduced if it is not permitted to demonstrate. Strike in a given situation is only a form of demonstration. There are different modes of demonstrations, e.g., go-slow, sit-in, work-to-rule, absenteeism, etc., and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognized by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers. But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed on it. These are to be found in Sections 10(3), 10- A(4-A), 22 and 23 of the Industrial Disputes Act, 1947 (“ID Act” for short). Section 10(3) empowers the appropriate government to prohibit the continuance of a strike if it is in connection with a dispute referred to one of the for a created under the said statute. Section 10-A(4-A) confers similar power on the appropriate government where the industrial dispute which is the cause of the strike is referred to arbitration and a notification in that behalf is issued under Section 10-A(3-A).
These two provisions have no application to the present case since it is nobody’s contention that the Union’s demands have been referred to any forum under the statute.”
10. Thus, it is established that right of strike as part of collective bargaining is recognized in law only so long as it is peaceful. There is no scope for violence. Workmen cannot be permitted to take law into their own hands. The striking employees/workmen etc. must obey the civilized norms in the battle, desist from using vulgar and intimidating language; indulge in violent acts or acts which may subversive to the discipline of the industrial undertaking/company etc.
11. It is equally settled that the right to freedom of speech and expression is guaranteed under the Constitution of India, but the same is subject to reasonable restrictions as enshrined under Article 19 of the Constitution of India. The Trade Unions or their office bearers can resort to demonstration/dharna but that would be subject to the law of land. The same can be carried out only in a peaceful manner and not in a manner that would stop the working of the management. The management has every right to ensure that its working is not obstructed. Therefore, a balance necessarily has to be struck between the competing interests and to ensure that the work of the management is not disturbed and at the same time workmen can also continue with their activities in a peaceful manner.
12. In Chandrana Brothers and others v. K. Venkata Rao and others, 1976 1 Ker LJ 245, the Hon’ble Kerala High Court has expressed the law lucidly and incisively and it is apt to reproduce paras 18 and 19 of the judgment which read thus:-
“18. The principles which are relevant for the purpose of the present case as can be gathered from the above may be now summarised. A demonstration by the employees is protected under Article 19 of the Constitution of India provided it is peaceful and orderly. Such a demonstration is, therefore protected even apart from Section 18 of the Trade Unions Act, 1926. Section 18 does not afford immunity for an act of deliberate trespass. The members of a trade union may resort to a peaceful agitation by gathering together ei ther outside the industrial establishment or inside within the working hour provided it is peaceful and no violence, intimidation or molestation is involved and there is no violation of the provisions of law. An act in contemplation or in furtherance of a trade dispute which induces breach of contract on other employees or causes interference with trade, business or employment of some other to dispose of his capital or labour as he wills would not be actionable, but such inducement or interference must be by lawful means and not by means which would be illegal or wrongful. The display of posters within or outside the place of business is permissible. The workers are entitled to the protection of Section 18 of the Trade Unions Act even if the strike is illegal under Section 24(l) of the Industrial Disputes Act.
19. The workers may resort to peaceful picketing i.e., the marching to and fro before the premises of an establishment. They may be accompanied by the carrying and display of sign boards, placards or banners bearing statements in connection with the dispute. They may also request politely the employees not to assist in the running of the business and ask the customers not to patronise that establishment. Such acts would constitute peaceful picketing and are protected under Section 18. The demonstration may cause inconvenience and embarrassment to the employer. It may be intended to bring pressure on the management to concede to the workers’ demands. But such demonstration is protected so long as it is peaceful and does not turn violent. The employer can claim that the ingress and egress to their business premises should be protected from obstruction. He is also entitled to protection if there is imminent danger to life or property. If the picketing ceased to be peaceful or becomes a nuisance or endangers public peace, it ceases to be lawful. If the picketing is carried out in such principles or in such manner as is likely to intimidate or to obstruct or molest the employees or molest the employees or customers against their will, it would be unlawful.
Any show or threat of violence or any other unlawful threat likely to create fear in the mind of a reasonable man will render picketing unlawful. Pickets are not entitled to compel people to listen to them or to obstruct deliberately standing in their way or catching hold of their arms, they are also not entitled to obstruct passage of vehicles by lying down in the high-way in front of them or otherwise blocking the high-way. They are not entitled to pester those persons who do not wish to listen to them, and who have requested them to desist. Right to picket is a very tangible one which is closely limited by the equal right of others to go about their lawful affairs free from objection, molestation or intimidation. The methods of persuasion are limited to oral and visual methods i.e., the use of the voice and the exhibition of placards and should not be extended to physical obstruction of a vehicle or a person which would be illegal. Each case must depend very largely upon its attending facts and circumstances as to whether or not particular acts complained of are protected under Section 18 or not. When persons are combining and conspiring together and adopt means calculated to intimidate or to coerce the employees or those who wish to become employees from remaining in or entering his employ, or to prevent employers customers or others who wish to have dealings with him from so doing by means of force, threats, intimidation or violence resulting in serious injuries to plaintiff’s business, then such acts would not be protected.”
13. Adverting to the facts, it would be noticed that the specific allegations of the petitioners are that 40 erstwhile workers are creating hindrance in the execution of the work and have paralyzed the entire work and have virtually held the project to ransom which is causing unnecessary delay in the execution of the project of great significance and importance, which is detrimental to the larger public interest. This only goes to show that these workers have no or scant respect for the rule of law or else they would have taken resort to legal remedy.
14. In addition to the above, it appears that these 40 workers are indulging in illegal acts of instigating other workers to stop or desist from work and go on strike or join them and have tried to compel the respondent No. 3 to meet certain unlawful demands by adopting hand twisting tactics to take them back in service. All such workers have a legal and legitimate right to approach the competent authority/Court for redressal of their grievances but cannot be permitted to take law in their hand.
15. We have no hesitation to conclude that even if some of the demands of these persons are genuine, even then the mode and manner of protest adopted and resorted to by them is totally illegal. Therefore, in the given facts and circumstances, we deem it proper and necessary to pass the following directions:
1. The services of 40 workers whose services have been dispensed with on 23.2.2018 by respondent No. 3, are restrained alongwith their associates, supporters or anyone claiming for or under them from interfering or obstructing the ingress and egress of the workers on roll of respondent No. 3 or its sub-contractors or any other person(s) intending to enter the premises of respondent No. 3. In addition thereto, from interfering or causing any hindrance in the smooth working of the Project in question i.e. Theog-Hatkoti-Rohru Road in relation to Package-I.
2. The aforesaid persons are further restrained from holding or staging any demonstration, dharna, shouting slogans, making provocative speeches within 500 meters from the site. Lastly, they have completely restrained from hurling abuses, intimidating the staff or any other person or persons connected with the execution of the work with respondent No. 3 or execution of the Project or indulging in any act of violence, assault, gherao and coercion causing bodily injury, abusing any workers or staff of respondent No. 3. 3. The Deputy Commissioner, Shimla and Superintendent of Police, Shimla shall ensure the strict compliance of this order in letter and spirit.
16. However, this order will not come in the way of 40 persons in holding a peaceful agitation, which does not in any manner affect the right of the workmen, who otherwise want to work and shall further not prevent these workers from resorting or taking recourse to such lawful remedies as are otherwise available to them under law.
17. List on 28.3.2018 when the fresh status report be filed by respondent No. 3.
Courtesy LLR
